Summary
In Champion, the defendant called two witnesses who testified that the defendant had a good reputation in the community for truthfulness and veracity and for being a peaceful and law-abiding citizen.
Summary of this case from People v. RoperOpinion
Docket No. 65075.
Decided July 13, 1981.
On application by the defendant for leave to appeal the Supreme Court, in lieu of granting leave to appeal, reversed the defendant's conviction and remanded the case for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.
Carl Ziemba for defendant.
The defendant placed before the jury his reputation for being truthful, peaceful and law-abiding. He challenges the prosecutor's introduction in rebuttal of evidence of specific acts of misconduct. We agree with the defendant and reverse his conviction.
I
The facts underlying this prosecution were well-stated by the Court of Appeals. 97 Mich. App. 25, 27-28; 293 N.W.2d 715 (1980).
The defendant called Merritt W. Tumanis and Walter Raymond to testify as character witnesses. Mr. Tumanis testified that he had known the defendant for about a year and a half and that the defendant had a good reputation in the community for truthfulness and veracity and for being a peaceful and law-abiding citizen. Mr. Raymond testified that he had known the defendant all his life and that the defendant had a good reputation for being truthful, peaceful and law-abiding.
On cross-examination of these character witnesses, the prosecutor did not inquire about any specific acts of misconduct. The prosecutor did call Larry Martin to rebut the testimony of these character witnesses. Defense counsel objected, and the prosecutor responded:
"the door has been opened, they elicited testimony that this defendant is a law-abiding citizen, at this point I believe I can now inquire into that."
The trial judge overruled the objection:
"Case law in the State of Michigan indicates once a defendant has placed his character in issue it is proper for prosecution to introduce evidence that the defendant's character is not as impeccable as it is claimed, you may ask any questions concerning his reputation as to peaceful and law-abiding citizen. Limit it to those issues."
The prosecutor was allowed to elicit testimony from Mr. Martin to the effect that the defendant used marijuana and cocaine, sold marijuana, and had ten pounds of marijuana at his residence on one occasion.
On appeal, the defendant claimed that it was reversible error for the trial judge to let the prosecutor impeach the character witnesses with Larry Martin's rebuttal testimony. The Court of Appeals rejected his argument:
"Under MRE 405(a), the people are allowed to inquire with specific instances of conduct on cross-examination where defendant offered testimony as to reputation." 97 Mich. App. 32.
II
MRE 405(a) provides:
" Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct."
The rule codifies Michigan's common law:
"As a general rule, evidence of good character may only be rebutted by evidence that it is bad. Specific acts of misconduct may not be shown for that purpose." People v Powell, 223 Mich. 633, 640; 194 N.W. 502 (1923).
The prosecutor may cross-examine the defendant's witness "to test his knowledge and candor * * *, and for that purpose he may be asked if he has heard of specific acts of misconduct". People v Rosa, 268 Mich. 462, 465; 256 N.W. 483 (1934). The prosecutor's rebuttal witness may testify only as to reputation, however. In this case, the prosecutor reversed the procedure permitted under MRE 405(a) by inquiring into specific instances of conduct in examination of a rebuttal witness.
We recognize the additional qualifier "relevant" in the rule, but we are not asked to address and therefore do not decide the relevance of the specific instances of conduct inquired into in this case.
In lieu of granting leave to appeal, under GCR 1963, 853.2(4), we reverse the judgments of the Court of Appeals and the circuit court and remand the case to the Kalamazoo Circuit Court for a new trial.
COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.